Bad Language

30 Jan 2015

Mr L was employed as a risk and loss prevention investigator by a retailer with stores across the UK. He covered 100 stores in the North-East of England.

The company uses Twitter as a marketing and communication tool so Mr L created a Twitter account for private use and to monitor the tweets put out by his stores. Of course he tweeted himself and allowed 65 of his stores to hang on his every thought. Of course he didn’t restrict his tweets. Of course he crossed the invisible line by sending offensive tweets about dentists, caravaners, golfers, Newcastle United football supporters (he supports Sunderland), the police, his father and his sister-in -law.

A member of staff complained. Mr L was dismissed. He claimed this was unfair and the tribunal agreed because he didn’t create his Twitter account as part of his job, the offensive tweets were not sent in working time and there were excuses for some of his messages. The Judge also noted the employers disciplinary policy didn’t say that inappropriate use of social media in private time could be gross misconduct.

The employer appealed and Her Honour Judge Eady QC led the EAT in a demonstration of applied common sense. She observed Mr L chose not restrict his tweets to social acquaintances. He knew employees and customers could pick them up and that at least one Store Manager encouraged this. Therefore it was perverse not to recognise tweets were going to a work-based audience at least one of whom was moved to complain. Her Honour also dismissed Mr L's assertion he didn’t say anything derogatory about his employer; the issue is that tweets went to employees so could have been harassment and to customers so could have damaged the employer's reputation. The appeal was allowed.

My only (very) slight quibble is that the EAT declined to give guidance about legal standards of acceptable behaviour on social media. It may be obvious to you and I but this case demonstrates that many people still drop their guard and their standards when faced with a keyboard and a screen.

I know most of my readers have robust constitutions but I am not repeating Mr L's tweets for reasons of taste – but if your curiosity outweighs your qualms let me know and I’ll pass them on.

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